Tagged: witness credibility

Pace Law’s Distinguished Fellow in Criminal Justice Mimi Rocah recently appeared on the “Law & Crime” network to discuss the government’s use of a cooperating witness with host Caroline Polisi. Ms. Rocah explained the process of using a cooperating witness in a federal prosecution. Although a cooperator must first plead guilty to the highest possible crime (and possibly other unrelated crimes), the incentive to cooperate in a federal investigation is significant. If the government finds that the cooperator has information against more culpable parties and they testify truthfully, the government will ask the judge to sentence the cooperator below the mandatory minimum under the sentencing guidelines. See the interview here.

Prof. Bennett L. Gershman of Elisabeth Haub School of Law at Pace University, in his most recent Huffington Post blog titled Judge Drops Ball in “Grid Kid Slaying” Case, comments on yet another instance of blatant prosecutorial misconduct. This one involves a Brooklyn prosecutor who failed to reveal information about circumstances surrounding the testimony of the prosecution’s star witness. As Prof. Gershman suggests, it appears that there was in fact a quit pro quo between the prosecutors office and Avitto, which the Judge chose to ignore.

This was the defendant John Giuca’s second try at a new trial. Prof. Gershman focuses on the court’s misplaced acceptance of the testimony of a career criminal, John Avitto (Giuca’s cell-mate), who claimed Giuca had confessed to him and who also claimed he had not received anything in return for his testimony. Prof. Gershman articulates the test that should be applied and concludes that the court failed to engage in the appropriate analysis.

But Judge Chun missed the point. The test is not whether there was any formal agreement; the test – and the law is very clear on this – is whether there is any reasonable basis in fact for the informant to believe that he is gaining special treatment from the prosecution because of his cooperation, and whether that special treatment might reasonably have motivated him to falsify his testimony.

Prof. Gershman asks:

… Is this a tactic that a prosecutor – the most powerful official in government and sworn to serve justice – should be allowed to embrace when there is the chance that revealing these facts to the jury might destroy the credibility of her star witness?

Although the New York State Court of Appeals decision in People v. McCray, will likely not be a hot topic of conversation in many legal circles, it will definitely have a palpable impact on prosecutorial practices regarding the handling of Bradydisclosures in New York.

In McCray, the defendant was accused of raping an 18-year-old female acquaintance. At trial, the prosecution alleged that the defendant and the complainant had gone on a date and that the defendant physically forced the complainant to engage in sexual intercourse while inside an abandoned building. The defense claimed that the sexual encounter was consensual, and an altercation arose when the complainant demanded money in exchange for having sex with the defendant. The defense also contended that a physical struggle occurred when the defendant attempted to stop the complainant from running off with his “pants.”

Unquestionably, the case presented a “classic he-said she-said credibility determination.” And “[t]he outcome of the case obviously depended on which witness the jury believed.”

Prior to trial, the prosecution requested that the court conduct an in-camera review of the complainant’s mental health records. The prosecution didn’t believe that all of the reports were discoverable, and sought the court’s guidance as to which documents were Brady-Giglio material. The trial court found that only 28 pages out of the thousand records it reviewed should be disclosed to the defense –although the undisclosed records referenced, among other things, the complainant’s tendency (1) to confuse dates of events or misunderstand events, (2) to have hallucinations or distorted perceptions, (3) to misrepresent the truth in an effort to please her mother, (4) to engage in wishful thinking about relationships with males with whom she is recently acquainted, and (5) to fabricate occurrences of sexual assault and attempted rape by her father –allegations which were ultimately deemed “unfounded.”

The Court of Appeals observed that “[t]his case differs from the typical Brady case in that it involves confidential mental health records, and the decision to deny disclosure was made not by a prosecutor, but by a judge after an in camera review of the records sought.” Nevertheless, it concluded that the key inquiry remained whether there was a “reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”

The Court held that the undisclosed records were “either cumulative or of little if any relevance to the case.” The Court explained that they “contain other examples of what could be called hallucinations or distorted perceptions, but the other examples were no clearer or more dramatic than the ones the defense already had….” The Court also found that any prior fabrications would be immaterial because the “accusation [against] her father was far removed in time and quite different from the[se] accusation[s]…” The Court concluded that “[i]t is hard to imagine, however, a juror who could attribute the complainant’s testimony here — a claim of rape, made immediately after what defendant testified was consensual sex followed by a dispute over payment — to a failure of recollection or a misunderstanding, however susceptible to those failings the complainant may have been.”

Dissenters were critical of the Court’s failure to protect the defendant’s right to consider and explore all legitimate avenues of information relevant to his defense and to the victim’s testimony and potential cross-examination. (Dissenting Judges: Jenny Rivera, Jonathan Lippman, Eugene Pigott). They explained that “[w]ithout access to documents concerning reliability of the witness, the defendant cannot properly develop and pursue questioning favorable to the defense or address facts and related issues important to the truth finding process.”

Unfortunately, the long-standing importance of the Brady-Giglio rule has not been fully appreciated by all members of the Court and decisions like McCray reaffirm the need for legislative reform in order to address the stark imbalance in discovery practices. Likewise, the result-affecting test conducted by the Courts to determine Brady violations is simply a farfetched and imperfect process -as “[w]hat influences juries, courts seldom know.” (Chief Judge Jerome Frank). The imperfection of this process is further illustrated by the illogical fact that the majority in McCray found it “hard to imagine” that a juror might reach a different outcome–while members of its own bench implicitly found that they would have reached a different outcome in this case had they know of the undisclosed reports.

The McCray decision simply fails to recognize that the right to disclosure of exculpatory and impeachment evidence under the Brady-Gigliorule is the cornerstone to ensuring a defendant the right to a fair trial, and ensuring that the “goals of seeking the truth through the trial process” is legitimate. Without access to favorable evidence, a defendant is unable to either effectively prepare for trial, or present facts important to the “truth finding process.”

All the parties in McCray, except the defense, were permitted to decide how the complainant’s mental health records may be useful to the accused. In my opinion, such a vetting process is unsound, and should not be representative of how future Brady-Giglio materials should be handled by prosecuting offices. As an alternative, these Brady-Gigliomaterials, even if referencing “private matters” of the complainant, should have been turned over to the defense under a protective order, or subject to preclusion after the court heard arguments from both sides. Of course, such an alternative process would at least respect the fundamental principle that the right to favorable evidence is one of constitutional dimension -and the “privacy concern” of a witness is not.

To decide what may be favorable to a defendant, while keeping him blindfolded in his prison cell, does not comport to the notions of fairness and justice for all.

I was part of a fascinating experiment in my Criminal Procedure Class at Pace Law School, which powerfully brought home the dangers of mistaken identification and wrongful conviction. On Thursday, April 24, 2014, class began in its ordinary fashion – a student was called on to discuss the facts and holding in United States v. Wade, 388 U.S. 218 (1967). About ten minutes into class, we all learned that this was no ordinary criminal procedure class when a man suddenly stormed into the classroom. According to students’ accounts of the event, the man approached the Professor, Professor Bennett Gershman, and shouted, “Hey Gershman, remember me? You fucking failed me last year.” The intruder then pulled out a gun with his right hand (a “black Glock semi-automatic pistol,” according to some students), and stated, possibly two times, “Give me your wallet.” One student stood up, but the man ordered her to sit down. The man ordered everyone in the class to stay seated. The Professor gave up his wallet and the man ran out. The whole event, according to students, lasted anywhere from thirty seconds to a minute and a half.

A Pace Security guard came in moments later. Professor Gershman assured him that everything was OK. Professor Gershman asked the students not to talk to each other and to write down a brief description of what they just observed, including a description of the assailant.

After the students did so, Professor Gershman dimmed the lights, pulled down the screen, and projected a photographic array of males of similar age and facial characteristics to the intruder. The students were asked to try to identify the intruder from the photos. Prof. Gershman specifically admonished the students that the perpetrator might or might not be in any of the photos.

Here are the results:

Photo #1 – 1 student (1%)

Photo #2 – 7 students (9%)

Photo #3 – 1 student (1%)

Photo #4 – 9 students (12%).

Photo #5 – 41 students (55%).

Photo #6 – 9 students (12%)

Six students reported that the assailant’s photo was not present in the array (7%).

The intruder’s photo was photo #5.

After the students made their selections, the “intruder,” was invited in along with the Greenburgh Chief of Police, Chris McEnery, a Pace Law School alum and a wide-ranging mini-symposium on the constitutional, ethical, and policy rules governing eyewitness identifications began. Specifically, the discussion focused on, as Justice Brennan famously observed in the landmark case of United State v. Wade, how

the annals of criminal law are rife with instances of mistaken identification.

A review of the student responses apparently reveals that most of the students got the prominent facts right, but varied on lots of subsidiary details, and that they omitted important facts. Even though the students were shown the photo array approximately five minutes after the event, only 55% correctly identified the perpetrator in the photo array lineup. It is critical to note, of course, that real eyewitnesses would not be shown a lineup – corporeal or photographic – so quickly after an event, when the event is so fresh in the minds of the observer, as was the case in our class. As social science and scientific research demonstrates, memory retention – particularly the memory of an eyewitness – dissipates over time.

In this primer, the author offers observations on successful strategies for impeaching an arresting police officer when your client claims innocence.

By Steve Cobb, Pace Law School Class of 2014

Nothing is more commonplace than a criminal defendant who claims to be innocent. But what can be done when it appears that the arresting officer’s testimony is in fact incorrect or false? Criminal defense lawyers face a significant disadvantage when they seek to discredit arresting officers. Nonetheless, it can be done. Here is a three-step approach that may be helpful.

STEP ONE: OBTAIN FAVORABLE POLICE TESTIMONY: In order to expose false testimony, the arresting officers should be subjected to cross examination early in the case, when their memories are still fresh and they have not had a chance to be prepared by the prosecutor. Preliminary hearings, suppression hearings, or refusal hearings give the defense attorney a good opportunity to acquire information and lock the arresting officer(s) into their testimony. What we are looking for here are inconsistencies in the testimony, from the witness himself and between the witnesses if there are more than one.

The purpose of the pre-trial examination is not to make the officer look like a liar, but rather to gather information and find the truth. Thus, direct or open ended questions should be used instead of leading ones, so that the witness can fully describe what happened in his own words. Avoid arguing, and make a sincere effort to get complete testimony on the record. If you are patient and courteous, you may be amazed at how readily the false testimony seems to reveal itself. Remember Lieutenant Columbo? He was an excellent interrogator – friendly, but very knowledgeable, and tenacious. And effective!

Take away the police officer’s edge by being more familiar with the facts than he is – review the materials and visit the crime scene, if necessary.

Try to establish that some element of the offense is missing.

Force the police officer to commit to his/her version of events.

Once the (hopefully contradicting) testimony has been obtained, you may move for suppression or dismissal. Should the judge deny your motion for pre-trial relief, as is likely, you may now go to trial.

STEP TWO: TRIAL. The goal here is to highlight the inconsistencies in the police officer testimony. Perhaps the testimony is self-contradictory or it contradicts the testimony of another officer. You may also, as suggested by the Wisconsin Public Defender, try to establish that an essential element of the charge is missing. When the prosecutor rests, you can move to dismiss the charges based on “legally insufficient evidence” pursuant to CPL 290.10. Should that motion be denied, then move on and present your case. In the event that you lose the trial, move on to Step Three, a pre-sentencing motion to set aside the verdict.

STEP THREE: 330.30 MOTION TO THE TRIAL COURT: Now you can make use of all the inconsistent testimony you obtained! Under CPL 330.30, a trial court has only limited authority to set aside a verdict (and dismiss the criminal charges), but one of the permissible grounds is that the conviction was based on “legally insufficient evidence,” that is, testimony that is “incredible as a matter of law.” Pursuant to the statute, and People v. Carthrens, 171 A.D.2d 387 (1991), a trial court may not reverse a conviction based on the weight of the evidence, but it may set aside the verdict if the testimonial evidence was so contradictory and so insufficient that a rational jury could not have found, in any way, that the elements of the offense were proved beyond a reasonable doubt.

Will this approach work? Well, it can’t hurt, and should the trial court deny your request for relief, at least you have established a good foundation from which to make a “weight of the evidence” argument to the Appellate Division after the conviction.